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Expert Commentary on Upcoming Proposed Amendments FRE 902

Expert Commentary on the Upcoming Proposed Amendments FRE 902
by David A. Greetham

For the last 20+ years I have had the privilege to testify as an expert in the scientific field of digital forensics in State, Federal and International legal matters, as well as internal investigations and arbitrations. That testimony has encompassed the authentication, validation, and introduction of evidence, as well as the provision of my expert opinion with the goal of helping the court to understand potentially technically complex matters.

Along with the over 80 occasions that I have been called to testify as an expert, there have been just as many days, if not more, I have sat around a courthouse waiting to take the stand, only to be told I should come back tomorrow or next week, or that the court ran out of the allotted time and I will need to come back at a future date. There have also been several occasions when, after taking scores of hours to prepare, travel, and wait in a hallway, I have been dismissed after the parties simply stipulated to the facts I was prepared to testify about, thereby negating the need for live, expert testimony to authenticate Electronically Stored Data (ESI) or validate processes employed during discovery.

As I look back on the course of my career as a testifying expert, I estimate that I attended a legal hearing prepared to testify and actually didn’t testify 8 to 10 times more than when I did actually testify.

And each time, the client has had to pay for me, and many others offering similar testifying expertise and billing typical expert hourly fees, often to sit around wait to be called. This of course adds cost to litigation, and must be very frustrating for the client.

It appears that we will shortly have a better way of doing this, with the implementation of the proposed modification to Federal Rule of Evidence (FRE) 902 anticipated on 1st December 2017. The proposed amendment to FRE 902, allows for an expert to certify in writing that the ESI presented for admission has been authenticated and validated, instead of requiring the expert to travel and take the stand in open court to make the same statement verbally.

While this makes absolute sense as a cost-saving initiative, it should be noted that this proposed amendment to FRE 902 does not replace or otherwise affect the need for an expert to be deposed or take the stand if they are providing expert testimony in relation to scientific findings, interpretation of results or expert opinion in accordance with FRE 702. The proposed amendment simply replaces the need to inform a court verbally of what can be certified in writing in relation to authentication and validation of collected electronic evidence. Importantly (and a main driver of the proposed amendments), written certification now negates this need for an expert to attend a hearing for an unknown number of hours and in some cases days, ultimately saving costs for the party being represented, and serving the ultimate purpose of Rule 1 of the Federal Rules of Civil Procedure – to provide a just, speedy, and inexpensive determination in each matter.

As a testifying expert, I am a big supporter of the pending amendments to FRE 902. This modification will result in a better use of the client’s financial resources, and means that I won’t have to sit in Federal courthouse without my beloved mobile device to keep me company, while the client incurs hourly fees for my time. It should be noted that the required written certification still needs to be authored by an expert based on expertise, knowledge and experience in data collections and from someone who is familiar with evidence handling and best evidence practices. But I think experts generally would rather testify in relation to their findings and interpretation of the data, rather than simply authenticating and validating evidence. It also means that the clients financial resources can be used in a more targeted manner and potentially helping to expedite the revelation of the facts of the case, and ultimately a timely and cost-effective resolution to the matter.

About the Author
Our Affiliate guest article this week is brought to you by David A. Greetham, Vice Pres. of eDiscovery Sales & Operations at Ricoh USA. Mr. Greetham is a sought after thought leader and frequent speaker on the topics of digital forensics, eDiscovery and secure cloud operations.

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